The debate over the constitution is resurfacing, with parliament set to kick off its sessions on 23 January. Political parties and groups are preparing drafts through which they are attempting to configure the future of post-revolution Egypt.
According to the constitutional declaration of March 2011, the constitution is to be drafted by a constituent assembly consisting of at least 100 members representing all segments of society. The assembly is to be chosen by parliament and may contain members of parliament itself.
The varied propositions reflect contentious issues surrounding the constitution, such as power sharing, the state’s identity and sources of legislation.
According to press statements made by Wahid Abdel-Meguid, head of the parliamentary committee of the Muslim Brotherhood’s Freedom and Justice Party (FJP)-dominated Democratic Alliance, work has already begun on a document regarding the elements of the new constitution that will be submitted to the constituent assembly. Chief among them is a change in Egypt’s political structure by making it a mixed presidential/parliamentary system and dividing current presidential powers with the prime minister. The president will be charged with foreign policy and national security, and the prime minister will govern the country’s internal affairs.
Essam al-Erian deputy head of the FJP, told Al Jazeera television network that he didn't believe the constitution would be prepared before the presidential elections slated for June. He said that eventually the country should have a parliamentary system to avoid another "Pharoah," but currently, Egypt needs an elected president, one which has equal authority with parliament.
Some see the Brotherhood’s power sharing as an attempt to consolidate its gains in parliament, where they reaped at least 45 percent of the seats. The decision to share responsibility has spared the FJP from potential criticism.
Not to be outdone, the Salafi-oriented Nour Party is also preparing a draft for the constitution. Like the FJP, it wants to change the political system to a parliamentary one, and avoid the hegemony of one-man rule over the country.
Meanwhile, the constitutional drafts address the military’s position in the political system, hence raising the question of whether the military will maintain special powers within the state. Abdel Meguid previously told Al-Masry Al-Youm that the budget of the armed forces, technical information pertaining to armament and training, and management of the army are being considered in the draft. He added that the ruling Supreme Council of the Armed Forces may be consulted over these provisions, but that doesn't mean it needs to agree to them.
The question of Islamic Sharia law and the civil state is also resurfacing in the constitutional drafts. The desire by some to form a civil state, combined with Islamist domination of parliament, has been a source of anxiety for many.
The Nour Party wants to introduce an amendment to Article 2 from the 1971 Constitution which was abrogated in March 2011. Article 2 states that the principles of Islamic jurisprudence, Sharia Law, are the basis of legislation. The Nour Party would like to replace the word “principles” with “rulings,” a move it believes would make the article more binding.
Spokesman Yousri Hamad said that its proposed constitution aims to implement Sharia in a gradual manner, so as not to destabilize the state with a drastic change.
According to the FJP draft, Article 1 of the 1971 Constitution that defines the state would contain the words "Egypt is a civil state with an Islamic reference." The article would go on to declare a popularly-elected parliament as the basis of government.
Yehia al-Gammal, founder of Gomhorreya Gedida, an organization putting forward its own proposals, believes it is vital to define the state as civil in the new constitution and include a document that enshrining certain rights as inalienable.
“I think it's very important to have the [definition of the] civil state in the constitution to differentiate it from a religious or military state, which are the two main political forces in the country. Other political forces are disregarded at the moment. However, you can't just say it's a civil state and empty that statement of its content in the other articles,” he says.
However, Atef al-Banna, professor of constitutional law at Cairo University, disagrees that the state must be defined as a civil one in the constitution.
“This argument of the civil state is not applicable here at all and is just the talk of secularists and liberals,” he says.
“In Islam, the state is a civil one, because there is no authority that can claim to represent God on earth nor issue laws and decrees as if they came from the divine. A lot of secularists are making this a debate between a religious and civil state but secularism has no place in Egypt. Its time is gone. It was initially formed to separate the state from the Church as a result of state intervention by the Church. We do not have that in Islam.”
Other constitutional initiatives are less concerned with identity and more with how social and economic rights can be enshrined in the upcoming constitution.
An initiative entitled “Workers and farmers write the constitution,” spearheaded by the Egyptian Center for Economic and Social Rights (ECESR) in conjunction with other NGOs and movements, is holding nationwide meetings with workers and farmers to create a document to be presented to the constituent assembly.
“The aim is to release a document with a set of principles beforehand, which will be sent to the constituent assembly and the parliament. The principles ensure the rights of workers and farmers and those living in poverty and we hope to have them included in the rights section of the constitution,” said ECESR head Khaled Ali.
Others have conceived provisions that help protect Egypt’s revolutionary spirit. Mohamed Noor Farahat, secretary general of the Advisory Council, a body created by the ruling military council, said in a television interview earlier this month that the council might recommend an article legalizing citizens’ right to protest against injustice. This provision can arguably add legitimacy to Tahrir Square protests, and prevent majority parties from monopolizing legitimacy.
A group of scholars known as "Bait al-Hekma" (House of Wisdom) is preparing a constitutional draft to address the threat the power being monopolized.
The draft is based on five fundamental principles. The first principle is that every authority has an opposing power. The second is that every authority has oversight on it from another authority with powers to monitor. Third is the prevention of abuses of power by officials, and fourth is to energize the Shura Council as an administrative body. The last principle is the placement of mechanisms in the constitution to protect human rights and civil liberties.
Meanwhile, many are debating the use of the 1971 Constitution as a template document.
“A new constitution doesn’t mean that all the articles will be new,” said Banna. “The 1971 Constitution is good in many things, such as freedoms and the rule of law. So some can be taken as they are and others can be amended and others will be totally new, such as the powers of the president and the relationship among branches of power. The totally new articles will not be many but will be relevant. Therefore it shouldn't take long, and it will be presented as a new constitution.”
